CACI No. 2740. Violation of Equal Pay Act - Essential Factual Elements (Lab. Code, § 1197.5)
Judicial Council of California Civil Jury Instructions (2023 edition)
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2740.Violation of Equal Pay Act - Essential Factual Elements
(Lab. Code, § 1197.5)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was paid at a
wage rate that is less than the rate paid to employees of [the opposite
sex/another race/another ethnicity]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] was paid less than the rate paid to [a]
person[s] of [the opposite sex/another race/another ethnicity]
working for [name of defendant];
2. That [name of plaintiff] was performing substantially similar work
as the other person[s], considering the overall combination of
skill, effort, and responsibility required; and
3. That [name of plaintiff] was working under similar working
conditions as the other person[s].
New May 2018; Revised January 2019, November 2019, May 2020
Directions for Use
The California Equal Pay Act prohibits paying employees at lower wage rates than
rates paid to employees of the opposite sex or a different race or ethnicity for
substantially similar work. (Lab. Code, § 1197.5(a), (b).) An employee receiving less
than the wage to which the employee is entitled may bring a civil action to recover
the balance of the wages, including interest, and an equal amount as liquidated
damages. Costs and attorney fees may also be awarded. (Lab. Code, § 1197.5(h).)
There is no requirement that an employee show discriminatory intent as an element
of the claim. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622-625, 629
[3 Cal.Rptr.3d 844].)
This instruction presents singular and plural options for the comparator, the
employee or employees whose pay and work are being compared to the plaintiff’s to
establish a violation of the Equal Pay Act. The statute refers to employees of the
opposite sex or different race or ethnicity. There is language in cases, however, that
suggests that a single comparator (e.g., one woman to one man) is sufficient. (See
Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324 [55 Cal.Rptr.3d
732] [plaintiff had to show that she is paid lower wages than a male comparator,
italics added]; Green, supra, 111 Cal.App.4th at p. 628 [plaintiff in a section 1197.5
action must first show that the employer paid a male employee more than a female
employee for equal work, italics added].) No California case has expressly so held,
however.
There are a number of defenses that the employer may assert to defend what
appears to be an improper pay differential. (Lab. Code, § 1197.5(a), (b).) See CACI
67
No. 2741, Affırmative Defense - Different Pay Justified, and CACI No. 2742, Bona
Fide Factor Other Than Sex, Race, or Ethnicity, for instructions on the employer’s
affirmative defenses. (See Lab. Code, § 1197.5(a)(1), (b)(1).)
Sources and Authority
• Right to Equal Pay Based on Gender, Race, or Ethnicity. Labor Code section
1197.5(a), (b).
• Private Right of Action to Enforce Equal Pay Claim. Labor Code section
1197.5(h).
• “This section was intended to codify the principle that an employee is entitled to
equal pay for equal work without regard to gender.” (Jones v. Tracy School Dist.
(1980) 27 Cal.3d 99, 104 [165 Cal.Rptr. 100, 611 P.2d 441].)
• “To establish her prima facie case, [plaintiff] had to show not only that she is
paid lower wages than a male comparator for equal work, but that she has
selected the proper comparator. ‘The EPA does not require perfect diversity
between the comparison classes, but at a certain point, when the challenged
policy effects [sic] both male and female employees equally, there can be no
EPA violation. [Citation.] [A plaintiff] cannot make a comparison of one
classification composed of males and females with another classification of
employees also composed of males and females.’ ” (Hall, supra, 148
Cal.App.4th at pp. 324-325.)
• “[T]he plaintiff in a section 1197.5 action must first show that the employer paid
a male employee more than a female employee ‘ “for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions.” ’ ” (Green, supra, 111
Cal.App.4th at p. 628.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation - Wage Discrimination, ¶ 11:1075 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.14 (Matthew Bender)
CACI No. 2740 LABOR CODE ACTIONS
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